You Can’t Play a New Media Game By Old Media Rules

If there’s one aspect of the media business that has been disrupted more completely than any other, it’s the whole idea of “breaking news.” Just as television devalued the old front-page newspaper scoop, the web has turned breaking news into something that lasts a matter of minutes — or even seconds — rather than hours. If your business is to break news, your job is becoming harder and harder every day, as legendary Hollywood blogger Nikki Finke is only the latest to discover. Finke’s company has accused a competing news site of stealing news stories, and seems to be trying to use the antiquated “hot news” doctrine of 1918 to bolster its case. But relying on laws from the turn of the century isn’t going to help make the web-based content business any easier, regardless of the merits of Finke’s complaint.

According to the cease-and-desist letter that Finke’s MMC Corp. sent to TheWrap — a blog run by former New York Times writer Sharon Waxman — that site has been “engaged in a continuous pattern of misappropriating content from Deadline.com, publishing that information on TheWrap.com, passing off that information as its own.” So far, the only response from TheWrap has been to post the entire letter, which the site notes doesn’t actually refer to any specific stories that have been copied or misappropriated. And while Finke’s blog post tries to make the case that other sites shouldn’t be allowed to simply call a source to verify Deadline’s stories and then rewrite them, if this is illegal then virtually the entire traditional media industry is in danger of being sued.

In Deadline’s cease-and-desist letter, Finke’s representatives refer to copyright legislation and other protections for their content, but they also invoke a little-known ruling by the U.S. Supreme Court in 1918 that created something called the “hot news doctrine,” which comes up time and time again when media companies want to try and protect their ability to generate breaking news and not have it copied by others. Associated Press launched the case when it sued another newswire company for duplicating its scoops and sending them to customers in the U.S. before AP had time to get its reports there.

The newswire won a qualified victory, and that win has been used since to protect other content distributors — including a case in which the National Basketball Association sued Motorola to keep the company from broadcasting NBA scores on its pagers. In a case that is currently before the U.S. Court of Appeals, a group of investment banks are trying to use the “hot news” doctrine to prevent a site called Flyonthewall.com from posting information it gets from bank and brokerage firm research reports. Both Google and Twitter have filed documents with the court arguing against such a decision, for obvious reasons: a lot of news is broken now via a tweet, and the kind of aggregation that Google News is based on would arguably no longer be possible if any publisher could make use of the “hot news” argument.

As Om noted in his latest missive, the media industry is in the process of being unbundled, just like the telecom business has been, and it’s even harder for media and content companies because there is no technological aspect to their business, the way there is with telephones and infrastructure and bandwidth. All the media business has is content, which can take a million different forms, and which is available to everyone as soon as you click “publish” or “send.” Rewrite the words, change the headline, post a different photo, and what have you really copied? That’s not obvious.

Breaking news may have been a defensible game in 1918, but it isn’t any more — and the sooner content companies get used to that, the better off they will be.